Licensing Pilots of Ultralight Vehicles: Should Those Who Fly the "Light Stuff " Be Required to Have the "Right Stuff "? Donald Michael Morris

McGeorge Law Review

Volume 15 | Issue 4 Article 5

1-1-1984 Licensing Pilots of Ultralight Vehicles: Should Those Who Fly the "Light Stuff " Be Required to Have the "Right Stuff "? Donald Michael Morris

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Recommended Citation Donald M. Morris, Licensing Pilots of Ultralight Vehicles: Should Those Who Fly the "Light Stuff" Be Required to Have the "Right Stuff"?, 15 Pac. L. J. 1013 (1984). Available at: https://scholarlycommons.pacific.edu/mlr/vol15/iss4/5

This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Licensing Pilots of Ultralight Vehicles: Should Those Who Fly "The Light Stuff" Be Required To Have "The Right Stuff"?

This is a fulfillment of man's desire to have wings. One time at 1,000 feet a redtailed hawk flew formation in front of me. He peered back and rocked his wings. I rocked mine. He banked into a right turn and I followed. He banked the other way; so did I. This went on for 15 minutes, then he suddenly folded one wing and dropped like a stone. I couldn't quite follow that act; I conceded he was still master.' Within the last ten years, perhaps the fastest growth in general aviation has been in the area of powered ultralight vehicles.2 Ultralights are described as miniature airplanes.3 Like hang gliders, ultralights are normally made of Dacron sailcloth and aluminum tubing' and must weight less than 254 pounds. 5 These vehicles are not required to be registered with the Federal Aviation Administration (hereinafter referred to as FAA);6 hence, no accurate statistics reflect their numbers, but total sales since 1975 are thought to exceed 40,000 units.7 Pro- duction of ultralight vehicles in 1982 exceeded the combined total out-

1. Marden, The Bird Men, NATIONAL GEOGRAPIC, Aug. 1983, at 216 (quoting Bob Def- fenbaugh, president of an ultralight vehicle distributing corporation, on the joy of ultralight flight). 2. According to 14 C.F.R. §103.1 (1983), an ultralight vehicle is a vehicle that is manned by a single occupant, is intended to be used for recreation or sport purposes only, and does not have any U.S. or foreign airworthiness certificate. Id. §103.1(a)-(c). Federal Aviation Ad- ministration [hereinafter referred to as FAA] regulations create two categories of ultralight vehicles, powered and unpowered. Unpowered ultralight vehicles must weigh less than 155 pounds. Id. §103.1(d). This category generally includes what are popularly known as "hang gliders." Powered ultralight vehicles must weight less than 254 pounds empty weight, and have a fuel capacity not exceeding five U.S. gallons. A powered ultralight must not be capable of more than 55 knots calibrated airspeed at full power in level flight, and must have a power-off stall speed of not more than 24 knots calibrated airspeed. Id. §103.1(e). For the purposes of this comment, "ultralight" will mean a powered ultralight vehicle, while an unpowered ultralight vehicle will be referred to as a "hang glider." 3. Marden, supra note 1, at 198. 4. Id.; see FLYING, Oct. 1981, at 15 (like hang glider with an engine). 5. 14 C.F.R. §103.1(e)(1) (1983). 6. 14 C.F.R. §103.7(c) (1983). 7. Transcript from ABC News 20/20, Ultralights-Flyingor Dying? 4 (December 8, 1983 program) [hereinafter cited as Transcript] (copy on file at Pacific Law Journal) (up to 40,000 vehicles); Getting High on the Light Stuff, NEwswEEK, July 18, 1983, at 73 [hereinafter cited as Newsweek] (30,000 built in the preceding 3 years).

1013 Pacific Law Journal / Vol. 15 put of three of the most popular light aircraft manufacturers: Piper, Beechcraft, and Cessna.' Ultralight vehicles are popular for several reasons. Ultralights are pleasurable vehicles to fly. They represent a type of aviation similar to the first flight by the Wright brothers. 9 The open cockpit environment lets the pilots feel like part of the wind." ° Pilots say they enjoy seeing birds flying in formation with their slow-flying ultralight."1 Furthermore, the price of an ultralight, ranging from $2,800 to $7,000,12 makes aviation available to many people who cannot af- ford a general aviation light aircraft. Finally, unlike other general aviation private pilots,' 3 an ultralight pilot does not need an FAA certificate to fly."4 The position of the FAA is that ultralight flying is primarily a sport or recreational activity" and that excessive regulation will stifle ultralight aviation. 6 Consequently, the FAA has adopted the minimum amount of regulation believed necessary to achieve safety and has left most of the regulation to the ultralight industry itself.' 7 One pro- vision included in the FAA regulations, however, is an express state- ment that an ultralight operator need not have a pilot certificate. 8 Certification of airmen, to include pilots, is one of the functions of the FAA. 9 The Administrator of the FAA is empowered and has the duty to promote the flight safety of civil aircraft in air commerce.20 The Administrator 2' may prescribe and revise reasonable rules and regulations as needed to provide adequately for safety in air commerce.22 Ultralight vehicles are for recreational or sport purposes only23 and do not engage in commercial operations. The term "air

8. Transcript, supra note 7, at 4. 9. NEWSWEEK, supra note 7, at 73. 10. Markowski, Ultralight Airplanes, ScIENTi Ic AMERICAN, July 1982, at 62. 11. See NEWSWEEK, supra note 7, at 74; Transcript, supra note 7, at 4-5. 12. Markowski, supra note 10, at 62. 13. See 14 C.F.R. §§61.109 (1983) (airplane rating, aeronautical experience), 61.113 (rotor- craft rating, aeronautical experience), 61.115 (glider rating, aeronautical experience), 61.117 (lighter-than-air rating, aeronautical experience), 61.119 (free balloon rating, limitations). See generally id. §61.3 (requirements for certificates, rating and authorization). 14. See id.§103.7(b). 15. 47 Fed. Reg. 38,773 (1982). 16. Id. 17. Id. 18. 14 C.F.R. §103.7(a) (1983). 19. 49 U.S.C. §1422 (1976) (the Administrator of the FAA is empowered to issue airman certificates). 20. Id. §1421(a) (1976). 21. Defined as Administrator of the FAA. Id. §1301(1). 22. Id. §1421(a)(6) (1976). 23. See 14 C.F.R. §103.1(b) (1983).

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commerce," however, includes any operation or navigation of aircraft that may endanger safety in interstate, overseas, or foreign air 2 commerce. 1 Ultralight vehicles, like general aviation aircraft, are capable of endangering safety in air commerce and should come under the regulatory ability of the FAA.2" The lack of regulation that makes ultralight aviation so attractive to many persons also creates a hazard to those who fly ultralights and to those who fly in the same airspace as ultralights. 26 Nation- wide in 1983 ultralight pilots were involved in at least eighty-six accidents serious enough to report to the National Transportation Safety Board (hereinafter referred to as NTSB) with at least forty-six pilots fatally injured.27 Many accidents are caused by pilot error stemming from lack of knowledge and experience.2z The first flights can be par- ticularly hazardous for the unprepared pilot. 29 At least eleven accidents in 1983 occurred on the pilot's first, second, or third flight in an ultralight. 30 Additionally, ultralight pilots have flown in regulated airspace and have been involved in several near midair collisions with general aviation and commercial aircraft. While ultralight pilots are prohibited by regulation from operating in airspace that would endanger other aviation traffic,3 2 no mandatory certification procedure exists to ensure that ultralight pilots have knowledge of the regula- 3 tions directing where the pilot may not fly. The FAA investigates violations or alleged violations of the Federal Aviation Act of 1958 3 and regulations issued under the Act. 5 The FAA may take administrative or legal enforcement actions against a violator.3 6 An ultralight pilot who violates safety regulations could

24. 49 U.S.C. §1301(4) (1976). 25. See infra notes 63-76 and accompanying text. 26. Id. 27. See infra notes 157-70 and accompanying text; see also NEWSWEEK, supra note 7, at 74 (more than 20 killed in 1982). 28. See Aeronews, AiR PRoRmss, September 1982, at 18 (approximately 50% of all reported ultralight mishaps are a result of pilot inexperience). 29. Id. 30. See infra notes 154-58 and accompanying text. 31. See 47 Fed. Reg. 38,770 (1982); infra notes 142-55 and accompanying text. 32. 14 C.F.R. §103.17 (1983) ("No person may operate an ultralight vehicle within an airport traffic area, control zone, terminal control area or positive control area unless that person has prior authorization from the air traffic control facility having jurisdiction over that airspace."). 33. Id. §103.7(b) ("... operators of ultralight vehicles are not required to meet any aeronautical knowledge, age, or experience requirements to operate those vehicles.. 34. Pub. L. 85-726, 72 Stat. 781. 35. See 14 C.F.R. §§13.1, 13.3 (1983). 36. See generally id. §§13.11 (administrative actions), 13.13-.27 (legal enforcement actions).

1015 Pacific Law Journal / Vol. 15 be subject to a civil penalty of up to $1,000 for each violation." Effective enforcement, however, requires identifying violators." Un- fortunately, since ultralights need not bear any registration markings,"9 identification of violators is difficult unless other circumstances exist to pinpoint the identity of the violator."0 Existing regulations for aviation safety cannot be effective if enforcement is difficult or impossible. The "hands off" approach taken by the FAA to regulation of a rapidly growing segment of aviation is inconsistent with the responsibility of the Administration for aviation safety. The FAA should be commended for allowing ultralight aviation to develop. The current state of regulation, however, is inconsistent with the responsibility of the FAA to the rest of the aviation community.4' To protect those who fly ultralight vehicles and those who foreseeably may be endangered by ultralight aviation, mandatory certification requirements for ultralight pilots should be implemented. This comment will explore regulations concerning ultralight pilots. First, the history and development of ultralight aviation will be examined briefly. 2 Next, the history of current regulations will be considered, including the concerns of the FAA when the regulations initially were written. This portion of the discussion will be followed by an examination of the current state of regulation. 3 The discussion will show that the current state of regulation is inadequate to promote aviation safety. To determine if the state can enact supplemen- tal regulations on ultralight aviation, federal preemption policy will be examined. The analysis will reveal that federal regulation of aviation is pervasive and that state regulation is not viable.4' The relief, therefore, must come from the FAA. Next, an analysis of available accident data will be presented to reinforce the danger involved in the current unregulated situation. 45 This comment then will compare regulations of other sport aviation activities to ultralight regulations. 46 Specifically, regulations that apply to gliders and free balloons to promote aviation safety will be compared with the minimal state of ultralight regulations. This discussion will conclude that some form

37. Id. §13.15(a) (violation of Title VI (safety regulations of civil aeronautics)). 38. See infra notes 148-55 and accompanying text. 39. 14 C.F.R. §103.7(c). 40. See infra notes 149-55 and accompanying text. 41. See supra notes 20-21 and accompanying text. 42. See infra notes 48-63 and accompanying text. 43. See infra notes 64-110 and accompanying text. 44. See infra notes 111-47 and accompanying text. 45. See infra notes 148-80 and accompanying text. 46. See infra notes 181-201 and accompanying text.

1016 1984 / UltralightPilots of certification is required, thus a pilot certification program will be proposed.17 A certification program is inevitable, in light of the growth of the industry, which has occurred over a short period of time.

HISTORY OF ULTRALIGHT AVIATION The ancestors of ultralight vehicles initially appeared in the late nineteenth century, as people made their first attempts to fly.48 Otto Lilienthal of Germany made over 2000 flights in a device that was essentially a hang glider. 9 Others built gliders designed like box kites."0 The first powered version flew in 1898.1' This ultralight was a powered hang glider and was steered by the pilot shifting his weight.5 2 When the Wright brothers flew their "Flyer" on December 17, 1903, they achieved the first powered flight in which the pilot controlled the craft by moving aerodynamic surfaces rather than by shifting the pilot's weight.53 Through the early 1930s, several other persons attempted to sell an ultralight-type craft, but no designs were successful commercially. 4 From the time of the Wright brothers' flight to 1975, the emphasis in aviation was on the development of bigger and faster aircraft. Ultralight aviation was not pursued seriously during that time. 5 The first modern ultralight was made in 1975 by a hang glider pilot, John Moody." He sought a vehicle that could be flown independently of the natural lift required for a hang glider alone.5 To achieve this, he mounted a twelve horsepower Go-Kart engine on his hang glider, using the engine to drive a propeller. 5 This particular design was very basic. Enthusiasts with aeronautical knowledge quickly designed improvements that increased the efficiency of the craft. 9 In the relatively short time since 1975, the sport of ultralight aviation has boomed, with sales now exceeding those of general aviation aircraft.6" Although estimates vary, at least 30,000 ultralights are

47. See infra notes 202-06 and accompanying text. 48. Markowski, supra note 10, at 62. 49. Id. 50. Id. 51. Id. 52. Id. 53. Id. 54. Id. 55. See Marden, supra note 1, at 201. 56. Markowski, supra note 10, at 64. 57. Id. 58. Id. 59. See generally id.at 64-68 (examples of design improvements). 60. See Transcript, supra note 7, at 4.

1017 Pacific Law Journal / Vol. 15 believed to have been sold in the last three years.'" The rapidly growing sales drew many manufacturers into the production and sale of ultralight vehicles.6 2 Increasing sales also brought to the attention of the FAA the necessity of some form of regulation. 63 The first attempt at regulation occurred in 1974.

ULTRALIGHT REGULATION An increase in sport flying during the late 1960s and early 1970s prompted the FAA to investigate the growing field of hang glider activities." On May 16, 1974, as a result of this investigation, the FAA issued Advisory Circular No. 60-10, entitled "Recommended Safety Parameters for Operation of Hang Gliders." ' 6 This circular recommended certain procedures to operators of hang gliders, such as limiting altitude to 500 feet above the ground, remaining alert for aircraft, avoiding controlled airspace, and other common sense restrictions.66 This circular, however, preceded John Moody's first powered ultralight flight by almost a year. 67 The powered ultralight, therefore, was not within the purview of the advisory circular.68 The FAA realized that these ultralights, with their increasing sophistication, no longer fell within the scope envisioned by Advisory Circular 60-10.69 Furthermore, hang gliders and ultralights were being flown into regulated airspace, such as airport traffic areas,"' terminal control areas,7" control zones,7 2 positive control 3 areas, prohibited and restricted areas,7" and federal airways.75 The FAA admitted that allowing hang gliders and ultralights to operate without restfiction

61. NEWSWEEK, supra note 7, at 73. 62. Marden, supra note 1, at 206 (more than 50 manufacturers exist). 63. 46 Fed. Reg. 38,473 (1981). 64. Id. 65. Id. 66. Id. 67. Markowski, supra note 10, at 64 (Moody developed his ultralight during the winter of 1974-75). 68. 46 Fed. Reg. 38,473 (1981). 69. Id. 70. 14 C.F.R. §1.1 (1983) . that airspace within a horizontal radius of 5 statute miles from the geographical center of any airport at which a control tower is operating, extend- ing from the surface up to, but not including, an altitude of 3,000 feet above the elevation of the airport."). 71. Id. §71.12 (defined); see also 46 Fed. Reg. 38,476 (1981) (described). 72. 14 C.F.R. §71.11 (defined); see also 46 Fed. Reg. 38,476 (1981) (described). 73. 14 C.F.R. §71.15 (defined), see also 46 Fed. Reg. 38,476 (1981) (described). 74. 14 C.F.R. §1.1 "Prohibited areas" means that designated airspace within which the flight of aircraft is prohibited. "Restricted area" means airspace designated under 14 C.F.R. §73 within which the flight of aircraft, while not wholly prohibited, is restricted. 75. 46 Fed. Reg. 38,473 (1981).

1018 1984 / UltralightPilots was not consistent with the responsibility of ensuring the safety of air carriers and other aircraft.", On July 27, 1981, the FAA published Notice of Proposed Rulemaking 81-6 concerning hang gliders and powered ultralight aircraft." In the notice, the FAA invited comments from interested persons."8 Over 2500 individuals and organizations responded with comments on the proposed rules.79 On September 2, 1982, the FAA published a new Part 103 to the Federal Aviation Regulations,8" regulating powered and unpowered ultralight vehicles. s' The FAA stated that the rules for ultralight vehicles were needed to achieve an acceptable level of air safety by reducing potential conflict with other airspace users. 2 Furthermore, the rules would provide protection to persons and property on the ground. 3 The regulations promulgated by the FAA can be categorized as general requirements and operating rules. Under the general rules, the FAA defines an ultralight and considers ultralights to be either powered or unpowered.8 4 Any ultralight vehicle is subject to inspec- tion by the FAA upon request by the Administrator or a designated representative, 5 and a pilot may be requested to prove that the vehicle is subject only to the provisions regulating ultralight vehicles. 6 Any vehicle design that deviates from the ultralight regulations may result in the vehicle being designated an aircraft. 7 All regulations pertinent to aircraft, including airworthiness certification and pilot certification, then would apply.88 Furthermore, operations that deviate from the regulation may require a written waiver issued by the Administrator.89 The present operating rules for ultralights are straightforward. Ultralights may be flown only during daylight hours9" in visual weather conditions.' Persons operating ultralight vehicles may not engage in

76. Id. at 38,474. 77. Id. at 38,472. 78. Id. 79. 47 Fed. Reg. 38,770 (1982). 80. 14 CF.R. §103 (1983). 81. 47 Fed. Reg. 38,770 (1982). 82. Id. 83. Id. 84. 14 C.F.R. §103.1; see supra note 2 (for definition). 85. 14 C.F.R. §103.3(a) (1983). 86. Id. §103.3(b). 87. 47 Fed. Reg. 38,772 (1982). 88. See 46 Fed. Reg. 38,472 (1981). 89. 14 C.F.R. §103.5. 90. Id. §103.11 (1983). 91. Id. §§103.21 (operate by visual reference with the surface), 103.23 (listing flight visibility and cloud clearance requirements).

1019 Pacific Law Journal / Vol. 15 any operation that creates a hazard to other persons, property, 92 or aircraft.93 Moreover, ultralights may not be operated over any con- gested area of a city or town, nor over any open air assembly of persons. 9 Finally, ultralights are not to be operated within an airport traffic area, control zone, terminal control area, positive control area, 95 or prohibited or restricted airspace without permission from 9 6 the appropriate facility. While many of the regulations discussed above are matters of common sense, some provisions need to be clarified. These provisions include the location and definition of various controlled and special use airspaces and the agencies that may grant permission for operations within those airspaces.97 Additionally, the regulations must be consulted for visibility and cloud clearance requirements. Because these are rather technical requirements, some form of specialized training in ultralight regulations would be necessary. The significant portion of the general rules expressly provides that neither certification nor registration of the ultralight vehicle is required.98 More importantly, however, the regulations state that "not withstanding any other section pertaining to airman certification, operators of ultralight vehicles are not required to meet any aeronautical knowledge, age, or experience requirements to operate those vehicles or to have airman or medical certificates." 99 The FAA preferred that the ultralight community assume the initiative for the development of safety programs. Therefore, the FAA would not promulgate regilations concerning pilot certification or vehicle certification and registration. 00 Current estimates are that sixty percent of ultralight pilots have a private pilot's certificate.' 0 ' To receive a private pilot certificate, a person, among other requirements, must pass a written examination on aeronautical knowledge. 02 The scope of this examination includes appropriate federal aviation regulations applicable to the category of aircraft for which the person seeks a license.0 3 Thus, forty

92., Id. §103.9. 93. Id. §103.13. 94. Id. §103.15. 95. Id. §103.17. 96. Id. §103.19. 97. See supra note 70-74 (for definitions). 98. 14 C.F.R §103.7(a),(c) (1983). 99. Id. §103.7(b). 100. 47 Fed. Reg. 38,770 (1982). 101. See Lert, Live and Let Grow, Am PROGRESS, Feb. 1983, at 56. 102. 14 C.F.R. §61.103(d) (1983); see id. §61.105. 103. Id. §61.105.

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percent of the pilots flying ultralights have not demonstrated to the FAA that they have the requisite knowledge to operate in the regulated environment without endangering themselves or others."0 4 The desire of the FAA is that ultralight manufacturers will ensure that the prospective pilot receives adequate ground instruction before the manufacturer will sell the vehicle to the pilot."0 5 This "desire," however, does not have any enforcement mechanism attached. The FAA seeks to assure the cooperation of the manufacturers in ensuring pilot knowledge by threatening future regulation. 06 The FAA threatens more stringent regulations in the future if the industry does not regulate itself. 07 The problem with self-regulation is that the ultralight industry is in a period of rapid growth, and the industry is very competitive. Currently, more than fifty manufacturers build ultralights,10° with manufacturers entering and leaving the industry constantly.0 9 New vehicle designs are introduced frequently." 0 A reasonable manufacturer may provide training voluntarily so long as the manufacturer is making a profit. In a competitive industry, however, if the dif- ference between profitability and bankruptcy is the cost of a volun- tary training program, and the threat of additional regulation is less of a risk than the threat of immediate bankruptcy, a reasonable manufacturer more likely would forego the training program than go out of business. With no enforcement mechanism available except the threat of additional regulation, aviation safety training will depend upon the profitability to the manufacturer of compliance. When a few manufacturers are permitted to let untrained pilots purchase and operate ultralights, the safety created by a universal base of knowledge that a mandatory program would provide is destroyed. An alternative to allowing either the ultralight community to police itself or imposing additional federal regulations would be a state pilot certification program for pilots operating ultralights within Califor- nia. The ability of the state to license ultralight pilots, however, will depend on whether the power to regulate pilots belongs exclusively to the federal government.

104. See Lert, supra note 101, at 56. 105. See 47 Fed. Reg. 38,770, 38,773 (1982). 106. Id. at 38,770. 107. Id. 108. Marden, supra note 1, at 206, M. MARKOWSKI, ULTRALIGHT AmcRAT-TBE BASIc HANDBOOK OF ULTRALGHT AVIATION Appendix K (1981) (listing 56 manufacturers of plans, kits and engines in the United States). 109. See Lert, Ultralights-Too Much, Too Soon?, Am PRoGREss, June 1982, at 57. 110. See Marden, supra note 1, at 206.

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FEDERAL PREEMPTION Under federal preemption policy, a state statute that purports to regulate in an area of federal interest is void if the federal interest dominates and the state statute conflicts."' The federal preemption policy is derived from the supremacy clause of the United States Con- stitution, making federal law the supreme law of the land."12 Even if Congress has not foreclosed state legislation in a particular area completely, if a state law "stands as an obstacle to the accomplish- ment and execution of the full purposes and objectives of Congress,""' 3 conflict will be found and the statute will be void. ' 4 Under this authority, state regulation of ultralights may be preempted by the federal regulations. The preemption analysis will depend upon whether Congress intended to give the FAA the exclusive power to regulate aviation. The Federal Aviation Act of 1958"11 created the FAA with powers adequate to provide for the safe and efficient use of the navigable airspace."' , The FAA was given full responsibility for the advance- ment and promotion of civil aeronautics, including promulgation and enforcement of safety regulations.' ' The premise of the Act emphasizes safety." 8 Furthermore, the Ninth Circuit Court of Appeals, in United States v. Christensen,"9 held that the purpose of the Act was to create a unified system of flight control.' 2 0 Apparently, the intent of Con- gress in creating the Act was uniformity of regulation, with a single body responsible for aviation safety. Another case demonstrating the pervasiveness of regulation is City of Burbank v. Lockheed Air Terminal.'2' In Burbank, the United States Supreme Court struck down a Burbank ordinance prohibiting takeoffs by jet aircraft between 11:00 p.m. and 7:00 a.m. at the Hollywood- Burbank Airport. 2 2 The Court considered the Federal Aviation Act

111. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). 112. Id.; see U.S. CONST. art. VI, cl. 2. 113. Ray, 435 U.S. at 158. 114. Id. 115. Pub. L. 85-726, 72 Stat. 731. 116. H. REP. No. 2360, 85th Cong., 2d Sess., reprinted in 1958 U.S. CODE CowG. & AD. NEWS 3741, 117. Id. 118. Doe v. Department of Transportation, Federal Aviation Administration, 412 F.2d 674, 677 (8th Cir. 1969). 119. 419 F.2d 1401 (9th Cir. 1969). 120. Id. at 1404. 121. 411 U.S. 624 (1973). 122. Id. at 626.

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of 1958123 in conjunction with the Noise Control Act of 1972124 and concluded that Congress has preempted aviation regulation at least as applied to noise regulation.' 25 The Court, however, noted that this restriction by the City of Burbank was an exercise of the police powers of the municipality.' 26 The Court left unanswered whether the municipality, acting as a proprietorof the airport, could enact similar regulations.' 27 This question has been addressed by the Ninth Circuit 2 in Santa Monica Airport Association v. City of Santa Monica.1 1 In that case, the City of Santa Monica enacted noise regulations for the Santa Monica Airport.'2 9 Unlike Burbank, Santa Monica owned the airport and was considered by the court to be a proprietor.' 30 The court concluded that, when acting as a proprietor, the city is not preempted by congressional legislation.' Apparently, preemption of aviation regulation will apply when a state attempts an exercise of police power, but may not apply when the state acts as a proprietor. Another case indicating preemption of aviation regulation is World Airways Inc. v. International Brotherhood of Teamsters, Airline Division.'32 World Airways suspended a 747 pilot and then demoted him from pilot-in-command to first officer, because of his repeated errors in judgment. 33 An arbitration board ordered the airline to retrain and reinstate the pilot.' 34 The Ninth Circuit Court of Appeals, in affirming the reversal by the lower court of the arbitration board, held that federal law preempts the field of aviation.'35 The power to determine pilot judgment is given expressly to the airline by federal law, and an arbitration board cannot usurp that power. 3 6 The court considered Burbank, Christensen, and the purpose of the Federal Avia- tion Act in concluding that federal law preempts aviation regulation.'37 If a state were to certify pilots to promote aviation safety, this would be an exercise of police power in an area given to the FAA, and the exercise of this power would be void.

123. Pub. L. 85-726, 72 Stat. 731. 124. Pub. L. 92-574, 86 Stat. 1234. 125. Burbank, 411 U.S. at 638-39. 126. Id. at 636, n.14. 127. Id. 128. 659 F.2d 100 (9th Cir. 1981). 129. Id. at 102. 130. See id.at 103. 131. Id. at 104. 132. 578 F.2d 800 (9th Cir. 1978). 133. Id. at 801. 134. Id. 135. Id. at 803. 136. Id. 137. Id. at 803-04.

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An attractive alternative to state pilot certification would be state regulation of manufacturers. The state, for example, could require the manufacturer to include a pilot training program before selling an ultralight vehicle. Federal law, however, also preempts the regulation of manufacturers of aircraft. In deciding a choice of law problem, the court in In re ParisAir Crash of March 3, 1974,138 recognized that federal law preempts the field of aviation.'39 The court stated that since no airplane manufactured anywhere in the United States may be flown without an airworthiness certificate, the interests of the federal government in the manufacturer of aircraft is greater than the interest of any state.' ° Although an airworthiness certificate is not required to fly an ultralight, because the FAA is regulating and has retained the right to regulate ultralight vehicles further,' 4' any state requirements imposed upon manufacturers likely would be preempted by federal regulation under the supremacy clause. Regula- tion of manufacturers, like the regulation of aviation generally, therefore appears to be preempted by the federal government. California has recognized this federal preemption of aviation regulation. The California State Aeronautics Act 142 permits the state to regulate aeronautics. 143 The purpose of the Act is to encourage the development of private flying and to effect uniformity of the laws and regulations relating to aeronautics consistent with federal laws and regulations.144 The Act prohibits unlicensed operation of aircraft if a pilot certificate is requiredby the United States,' 45 and does not purport to require additional certification by the state. A recent amendment to the Act exempts ultralight vehicles from the definition of "aircraft" regulated by the Act.' 6 This amendment was enacted to maintain consistency with the federal position on ultralight regulation. The California Legislature, thus, has implicitly recognized the exclusive power of the federal government to regulate ultralights. Con- sequently, additional regulation of ultralights must come from the federal government.4 7 The need to certify pilots depends upon whether

138. 399 F. Supp. 732 (C.D. Cal. 1975). 139. Id. at 746. 140. Id. 141. 47 Fed. Reg. 38,770 (1982). 142. CAL. PUB. UTM. CODE §§21001-21694, 21001 (short title). 143. See id. §§21401-21416 (regulation of aeronautics). 144. Id. §21002 (emphasis added). 145. Id. §21409. 146. See id. §21012 (as amended by Chapter 12 of the Statutes of 1984, effective February 22, 1984). 147. See supra notes 111-41 and accompanying text.

1024 1984 / UltralightPilots the hazards involved in ultralight flight make some type of regulation necessary.

HAZARDs OF ULTRALIGHT AVIATION The threat of a midair collision between an ultralight and another aircraft is a hazard endangering all aviation. Another major risk is a crash of an ultralight vehicle either through pilot error or mechanical difficulty. An analysis of these risks indicates pilot certification is necessary. In promulgating the initial regulations governing ultralights, the FAA cited incidents of near midair collisions between ultralights and other aircraft as an example of the need to control ultralight pilots.'48 A near midair collision between an ultralight and a Western Airlines 727 and a near midair collision between an ultralight and a single engine aircraft were reported.'49 Accurate statistical information on near midair collisions involving ultralights and other aircraft is difficult to obtain. Ultralight vehicles are not required to be registered and normally bear no registration number.' 50 When a pilot of an aircraft is involved in a near midair collision, the pilot has the option of filing a report with the FAA district office.' 5 ' Without a registration number on the ultralight to aid in investigation, however, a pilot may elect not to file a report.'52 Furthermore, if the pilot does file a report, the lack of a registration number hampers investigation unless other circumstances exist to identify the vehicle and pilot involved.' 53 If the FAA district office is unable to investigate the near midair collision, no statistical information is kept on the incident.'54 Despite the lack of statistical information, some FAA officials believe a near midair collision problem exists.' 55 Without a mandatory requirement of some aeronautical knowledge, ultralight pilots apparently do not learn what airspace to avoid to reduce the midair collusion potential. Although the risk of midair collisions endangers licensed aviation traffic, airline passengers, and the ultralight pilot, a second risk is created by inexperienced ultralight pilots. The risk of an accident in-

148. 47 Fed. Reg. 38,770 (1982). 149. Id. 150. 14 C.F.R. §103.7(c) (1983). 151. See Telephone conversation with Paul Bigler, Sacramento FAA District Office (December 28, 1983) (notes on file at Pacific Law Journal) [hereinafter cited as Bigler conversation]. 152. Id. 153. Id. 154. Id. 155. Id.

1025 Pacific Law Journal / Vol. 15 volving an inexperienced ultralight pilot endangers mainly the pilot,"5 6 although persons and property at the accident may be injured. Ultralight manufacturers usually stress the thrill of flight more than 8 the potential hazards, 5 7 and the craft are represented as easy to fly.1 Ultralights, however, are extremely sensitive to wind and wind gust, a fact often not appreciated by novice ultralight pilots.15 9 The result is that inexperienced, unlicensed pilots are frequently injured or killed in ultralight accidents. 6 ' Accident data, like information on near midair collisions, are hard to obtain. The FAA has no duty to investigate ultralight accidents unless the local police or highway patrol requests FAA assistance at a crash scene.' 6' No reliable statistical information was kept until April 1, 1983, when the NTSB assumed the responsibility to take reports on ultralight accidents involving serious or fatal injuries. 62 The NTSB published a preliminary information report on November 3, 1983, that included five accidents prior to April 1, 1983, and eighty-one other accidents up to September 25, 1983.163 In these eighty-six known incidents involving ultralights, forty-six pilots were killed and thirty-six were seriously injured. 16 The report listed whether the pilot had a pilot's certificate for other aircraft.' 65 Fifty-eight pilots did not, including twenty-nine who were fatally injured. 66 The report includes a brief, one line description of each accident, and specifically lists in those descriptions eleven accidents that occurred on the pilot's first, second, or third flight.1 67 One fourteen year old pilot was killed in a crash during landing approach. 68 When flying time in type of ultralight vehicle was reported, only four of twenty-three pilots had one hundred or more hours. 69 One had thirty-five hours, the rest fifteen or less. 170

156. See 47 Fed. Reg. 38,772 (1982). 157. Transcript, supra note 7, at 5. 158. NEwswEEK, supra note 7, at 73; see Markowski, supra note 10, at 62. 159. See Markowski, supra note 10, at 68. 160. See infra notes 161-70 and accompanying text. 161. See Bigler conversation, supra note 151. 162. See Telephone conversation with Audrey Schutte, National Transportation Safety Board Air Safety Investigator, February 2, 1984 (notes on file at Pacific Law Journal). 163. See National Transportation Safety Board Preliminary Information, November 3, 1983 (copy on file at Pacific Law Journal). 164. Id. 165. Id. 166. Id. 167. Id. 168. Id. 169. Id. 170. Id.

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While the report makes no conclusion as to pilot error versus other causes of the accidents, one estimate holds pilot inexperience responsible for approximately fifty percent of all ultralight accidents, with nearly all the remaining accidents due to mechanical breakdowns. 71 Hence, some aeronautical knowledge and flight instruction apparently would be beneficial to the prospective ultralight pilot. These documented hazards indicate that some type of regulation is needed to protect the pilots and those persons foreseeably endangered by ultralight aviation. Since the state is precluded from regulating ultralight aviation, 17 some form of federal regulation is necessary. The Administrator of the FAA, as discussed above, 73 is empowered and has the duty to promote safety in air commerce. 7 The type and scope of regulations prescribed by the Administrator to carry out this duty, however, are within the discretion of the Administrator.' 75 A 1976 case, Fielder v. United States,'76 held that the Administrator's duty to determine what constitutes an aircraft within the meaning of the Federal Aviation Act is a discretionary function. 7 7 The Fielder case barred suit against the Administrator under the Tort Claims Act for failing to regulate hang gliders as aircraft because the statute defin- ing aircraft is broad.' 78 The decision to determine what is an aircraft is left to the Administrator, and the Administrator chose not to define a hang glider as an aircraft. 79 This case was decided only one year after the first flight of a powered ultralight, before the growth of the ultralight aviation industry could be foreseen." 0 No subsequent case has arisen to determine whether an ultralight should be classified as an aircraft. The large number of ultralights being flown and the dangers of ultralight aviation have been demonstrated. Consistent with the duty of the Administrator to promote aviation safety, ultralights should be classified as aircraft and regulated accordingly. This regulation should include certifying ultralight pilots. To reinforce this point, this comment now will compare ultralight aviation with other regulated activities.

171. See Am PROGRESS, Sept. 1982, at 18-19. 172. See supra notes 111-41 and accompanying text. 173. 49 U.S.C. §1421(a) (1976). 174. Fielder v. United States, 423 F. Supp. 77 (C.D. Cal. 1976). 175. 423 F. Supp. 77 (C.D. Cal. 1976). 176. Id. at 82. 177. Id. 49 U.S.C. §1301(5) (1976) " 'Aircraft' means any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air." This definition seems broad enough to encompass powered ultralights and hang gliders, yet the Administrator has chosen not to define an ultralight as an aircraft. Id. 178. Fielder, 423 F. Supp. at 82. 179. Id. 180. See supra notes 56-63 and accompanying text.

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COMPARATIVE REGULATION Since an ultralight vehicle, by definition, carries only a single person,18 an ultralight pilot engages in solo flight on his or her very first flight. The FAA regulates pilots who seek to fly solo in other aircraft."8 2 A comparison of the regulations for glider and free balloons with those for ultralight vehicles demonstrates the large disparity in regulations for similar activities. The knowledge required of other sport aviation is greater than that required of ultralight pilots. To be eligible for a student pilot certificate, a student pilot of general aviation aircraft must be sixteen years old, read, speak, and understand the English language, and have a third-class medical certificate." 3 A certificate limited to free balloons and gliders may be issued by the FAA to a student who is fourteen years old and who has no known medical defect that would make the student unable to pilot a glider or free balloon."' In addition to the certificate, a student pilot may not operate an aircraft in solo flight without demonstrating to an authorized instructor that the student is familiar with flight rules. The student must have knowledge of special use airspace and weather criteria, and must have received flight proficiency training in procedures and operations appropriate to the type of aircraft. 8 ' Gliders and free balloons are similar to ultralight vehicles because they are flown primarily for recreational purposes. Furthermore, all three types of vehicles are capable of endangering aviation safety. To fly solo in either gliders or free balloons, the student is required to receive instruction in flight preparation procedures. 8 6 Glider operations include instruction in tows, straight glides, turns and spirals, flight at minimum controllable airspeeds, stall recognition and recovery, traffic patterns including collision avoidance, and normal landings.' Student free balloonists must receive instruction in operation of hot air or gas source, ballast, valves, rip panels, liftoffs and climbs, des- cent, landing, and emergency procedures.' In other words, before a student may solo a glider or free balloon, the student must have been instructed on foreseeable events during flight and must be com-

181. 14 C.F.R. §103.1(a) (1983). 182. See infra notes 183-85 and accompanying text. 183. 14 C.F.R. §61.83 (1983). 184. Id. 185. See id. §61.87(b). See generally id §61.87 (requirements for solo flight). 186. Id. §61.87(c)(4), (6). 187. Id. §61.87(c)(4). 188. Id. §61.87(c)(6).

1028 1984 / UltralightPilots petent to deal with those events. The pilot of an ultralight, however, is not required to meet any aeronautical knowledge, age, or experience requirement to pilot an ultralight vehicle.'89 Pilots engaging in similar types of recreational aviation thus meet vastly different standards prior to their first solo flight. This is an illogical way to regulate if aviation safety is the goal of regulation. Similar types of aviation activity should require similar types of regulation. Having compared differ- ing regulations for similar aircraft, a second analogy may now be helpful. In United States v. Christensen,'90 the Ninth Circuit Court of Ap- peals used an analogy to decide whether "public aircraft," owned by the federal government, were exempt from federal regulation. The defendant pilot sought to be excused from following a mandatory flight control clearance.' He contended that Congress did not in- tend to include "public" aircraft when enacting a unified system of flight control for civil and military aircraft.' 92 The court, in holding that the aircraft were meant to be regulated, drew an analogy to state- owned automobiles. 9 3 The court could not conceive of a state inten- tionally exempting drivers of state vehicles from obedience to traffic laws. 194 An extension of the analogy of the court supports the thesis that ultralight pilots should be certified. The state requires an operator of a motor vehicle on the public highway to have a driver's license. 195 This licensing requirement is undertaken by the state, in part to promote the safety of people who use the public highway and people who foreseeably are endangered by the operation of motor vehicles. To obtain a license in California, a student driver must demonstrate proficiency in the operation of a motor vehicle and knowledge of the pertinent traffic regulations.' 96 Like the recent appearance of ultralight vehicles in the airways, a relatively recent phenomenon on the public highways is the appearance of the motorized bicycle. 197 While this is a new form of transportation with recreational applications, California recognized the potential hazard to other licensed operators on the highway and required

189. Id. §103.7(b). 190. 419 F.2d 1401 (9th Cir. 1969). 191. Id. at 1402. 192. Id.at 1404. 193. Id.at 1404-05. 194. Id.at 1403-04. 195. See CAL. VEa. CODE §12500 (unlawful to drive unless licensed). 196. See id. §§12803 (examination required), 12804(a) (examination and driving test). 197. See id. §406 (motorized bicycle defined).

1029 Pacific Law Journal / Vol. 15 motorized bicycle operators to have a valid driver's license to ride a motorized bicycle on the public streets.1 98 The state is given the power to regulate motor vehicle operators for the protection of its citizens and is willing to license operators of new types of motor vehicles. Congress, in enacting the Federal Aviation Act of 1958, sought to assure the personal safety of all who are potential passengers or crewmembers of civil and military aircraft, as well as others on the ground whose lives or property may be endangered by accidents.' 99 In each situation, state and federal, the appropriate body enacts legislation in an area of concern for the protection of citizens. The FAA enacts aviation regulations to protect passengers, crewmembers, and the public at large.20 The FAA is the appropriate governmental body to regulate to achieve a uniform national scheme of aviation rules.20' Similarly, the state, through the legislature and the department of motor vehicles, enacts motor vehicle regulations to protect motorists on the state roads. Regulation of operators on state highways is a state concern, and the department of motor vehicles is the appropriate agency to act. Just as the State of California decided to regulate motorized bicycles for the safety of its citizens, the FAA should take steps whenever the use of a new type of aircraft, such as an ultralight, endangers others. Like the motor vehicle operator licensing program that includes motorized bicycles, a program for licensing pilots who fly ultralights should be developed. Having concluded that regulation is necessary, this comment next will determine what shall be required of ultralight pilots.

RECOMMENDED REGULATIONS The FAA should promulgate regulations similar to the certification requirements for glider and free balloon student pilots. Similar levels of knowledge and preparedness for a first solo flight should be required since all three forms are primarily recreational flying and all three create a similar risk to aviation safety. Ultralight pilots should demonstrate a knowledge of pertinent aviation restrictions and regula-

198. See id. §§12509, 12804(g); 1976 Cal. Stat. c. 645, §1, at 1594 (amending CAL. VnH. CODE §12509 to include motorized bicycles). 199. Rauch v. United Instruments, Inc., 548 F.2d 452, 457 (3rd Cir. 1976). 200. See supra note 21 and accompanying text. 201. See supra notes 117-20 and accompanying text.

1030 1984 / UltralightPilots tions. When a pilot has been trained to identify controlled and special use airspace, the risk of inadvertently flying in airspace occupied by another is decreased. Training in the appropriate visibility and cloud clearance requirements should reduce operations in marginal visibility conditions. Furthermore, the prospective pilot should receive instruction in foreseeable flight events. Instruction in takeoffs, landings, turns, stall recognition and recovery, thermal and wind effects on the ultralight vehicle, and engine-off techniques should be required prior to solo flight. This training would prepare the ultralight pilot to fly while minimizing the risk of an accident. Additionally, in-flight instruction by a qualified instructor should be required prior to solo flight. The instructor would be able to demonstrate to the student procedures and techniques involved in flying ultralights. This requirement of demonstrating ability while under super- vision should help alleviate the risk of accidents in early solo flight by giving the student flying experience while enabling the instructor to correct the student's errors safely. The existing definition of an ultralight will have to be amended, however, to accomplish this goal. Currently, the definition of an ultralight permits only a single occupant." 2 The Aircraft Owners and Pilots Association (hereinafter referred to as AOPA) Air Safety Foundation successfully petitioned the FAA for a waiver of the regulations to permit two-place powered ultralights to be used for the purpose of training persons in the ultralight. °3 Any person not associated with the AOPA program, however, must seek a written waiver from the Administrator.20 4 The regulation should be amended to permit two-place vehicles for the sole purpose of training ultralight operators. This change would allow in-flight instruction, yet keep the general use of an ultralight as a single person, recreational use vehicle. Finally, the FAA should enact a mandatory registration of ultralight vehicles. Ultralights should bear a registration number similar to those required on other aircraft. This registration number would make the identification of violators easier, aiding in the enforcement of the regulations. Obviously, imposition of a certification program will impose more

202. 14 C.F.R. §103.1(a) (1983). The purpose of allowing only a single occupant is the notion that ultralight aviation is a sport. The only life risked is that of the pilot, who presumably is aware of the risks. See 47 Fed. Reg. 38,772 (1982). 203. 48 Fed. Reg. 29,649 (1983). 204. See 14 C.F.R. §103.5 (1983).

1031 Pacific Law Journal / Vol. 15 of a burden on the pilot than exists now with no certification. The objectives of the program, protecting the public and aviators, war- rant the imposition of some burden. The burden to be imposed upon ultralight aviators is no greater than that placed upon other sport 2 5 aviators. Similar levels of knowledge are required to engage in flight, 0 all in the interest of safety.

CONCLUSION This comment advocates the certification of ultralight pilots. Within the last decade, the industry has progressed from prototype flight to the production of an estimated 30,000 vehicles.20 6 The industry con- tinues to grow rapidly with the prospect of increasing numbers of vehicles competing for airspace. The FAA has attempted to regulate the activity only minimally to encourage the growth of ultralight aviation. 20 7 Unfortunately, this growth has endangered the public.0 8 The self-regulation desired by the FAA has not taken place. The FAA requires the pilots of other aircraft to be licensed, all as a part of the duty of the FAA to promote aviation safety. 209 Regulation of ultralight pilots should be implemented now. Since state regulation is likely preempted under the supremacy clause, federal regulation is proposed. 0 This author has examined the way in which the FAA regulates other recreational aviation activity. The FAA requires that other pilots possess a reasonable level of knowledge prior to solo flight. In ex- amining the hazards of ultralight aviation,21 ' this author has concluded that all aviation activity should require a pilot certificate by the FAA to promote aviation safety. As changes in technology have brought new motor vehicles onto the highways, the State of California through its regulatory agency, the Department of Motor Vehicles, has amended applicable motor vehicle regulations to protect its citizens. 212 This author, by analogy, suggests that the FAA should follow this example and amend its regulatory policy to keep pace with changing technology. Ultralight pilots should be certified. The regulations pro-

205. See supra notes 186-90 and accompanying text. 206. See supra notes 7-8 and accompanying text. 207. See supra notes 15-18 and accompanying text. 208. See supra notes 148-56 and accompanying text. 209. See supra notes 115-20 and accompanying text. 210. See supra notes 111-38 and accompanying text. 211. See supra notes 148-72 and accompanying text. 212. See supra notes 190-201 and accompanying text.

1032 1984 / UltralightPilots posed in this comment impose no greater burden upon the prospective ultralight pilot than do the regulations currently in effect for glider and free balloon pilots. The FAA has the power to regulate ultralight pilots, and consistent with the duty to promote aviation safety, the FAA should certify pilots of ultralight vehicles.

Donald Michael Morris

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